United States v. Michael J. Tomasino

230 F.3d 1034, 2000 U.S. App. LEXIS 23774, 2000 WL 1388294

Opinions

On Petition for Rehearing and Rehearing En Banc

PER CURIAM.

Our opinion in this case, 206 F.3d 739 (7th Cir.2000), concludes that because the 1991 amendment to U.S.S.G. § 2Fl.l(b) may have reflected confusion by the Sentencing Commission about the extent of its discretion, Tomasino’s sentence may not be enhanced under that guideline. The penultimate paragraph of our opinion invited the Commission to clarify its understanding without the formality of amending the guidelines or notes. We remanded the case for resentencing “after giving the Commission a reasonable opportunity to clarify its intentions in promulgating U.S.S.G. § 2Fl.l(b)(7)(B) 206 F.3d at 743.

Contrary to our expectations, the Commission did not welcome this opportunity. A letter sent to the Solicitor General on April 26, 2000, and attached to the United States’ petition for rehearing, conveys the Commission’s belief that our opinion “could cause the Commission to be burdened by a stream of judicial requests for clarification. Such a burden would impact negatively on the ability of the Commission to respond to legislative directives, resolve circuit conflicts, and promulgate other amendments pursuant to its mandate from Congress.” The United States’ petition for rehearing observes that the Commission prefers to limit itself to a legislative role:

The Commission is not charged with sentencing individual defendants. Nor should it be in the business of stating its views regarding the meaning of the Guideline provisions in any form other than through the promulgation process set forth by statute. Much like a legislature, once the Commission has promulgated its Guidelines and amendments, courts must interpret them as well as they can.

Given the jointly held view of the Sentencing Commission and the Department of Justice that guidelines and notes must speak for themselves, we withdraw the final two paragraphs of our opinion, which solicited the Commission’s views. This was an invitation, not a command, and the invitation has been declined not only for this case but also for future cases.

For the reasons stated elsewhere in our original opinion, however, a majority of the panel remains of the opinion that § 2Fl.l(b)(7)(B) may have been based on a misunderstanding and therefore does not support enhanced punishment for Tomasi-no. Accordingly, we grant the petition for rehearing to the extent it objects to the remand, and we now affirm Tomasino’s sentence. A majority of the panel has voted to deny the petition for rehearing to the extent it seeks any other modification of the judgment. No judge in active service has called for a vote on the petition for rehearing en banc, which is denied.